Parhm v. State , 2017 Fla. App. LEXIS 7659 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KEITH B. PARHM, DOC #C01111, )
)
Appellant, )
)
v. ) Case No. 2D16-3344
)
STATE OF FLORIDA, )
)
Appellee. )
___________________________________ )
Opinion filed May 26, 2017.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Manatee County; Susan Maulucci, Judge.
Keith B. Parhm, pro se.
WALLACE, Judge.
Keith Parhm seeks review of the postconviction court's order summarily
denying his motion for postconviction relief filed in accordance with Florida Rule of
Criminal Procedure 3.850. We affirm without comment the postconviction court's order
on all of the claims asserted except claim one. With regard to the postconviction court's
summary denial of Mr. Parhm's first claim—ineffective assistance of counsel for failing
to inform him of the elements of the offenses charged and his available defenses—we
reverse and remand for further proceedings.
Mr. Parhm was charged with violating the Florida Racketeer Influenced
and Corrupt Organizations (RICO) Act (count one) and conspiracy to violate the Florida
RICO Act (count two) for his participation in numerous drug deals as a member of a
criminal street gang. On November 5, 2008, Mr. Parhm entered into a negotiated no
contest plea on counts one and two. As part of the plea deal, Mr. Parhm was to
cooperate with law enforcement and his sentencing was deferred. On June 5, 2009,
after his motion to withdraw his plea was denied, Mr. Parhm was sentenced to thirty
years' prison on both counts. The trial court designated the sentences to run
concurrently. Mr. Parhm appealed, and this court affirmed his judgment and sentences.
Parhm v. State, 44 So. 3d 589 (Fla. 2d DCA 2010) (table decision).
In March 2014, Mr. Parhm filed his third amended motion for
postconviction relief under rule 3.850. In his motion, Mr. Parhm raised six different
grounds: (1) ineffective assistance of counsel for failure to inform Mr. Parhm of the
elements of the charges and any corresponding defenses; (2) ineffective assistance of
counsel for failure to obtain additional time for Mr. Parhm to consider the State's plea
offer; (3) a claim that the plea was involuntary because Mr. Parhm did not understand
the consequences of his plea agreement; (4) a claim that the sentence imposed was
vindictive; (5) a claim that the racketeering statute was unconstitutional; and (6) a claim
of cumulative error. On June 29, 2016, the postconviction court entered an order
summarily denying all six of the grounds asserted in the motion. On appeal, Mr. Parhm
challenges only the denial of his first four claims. We will discuss Mr. Parhm's first claim
below. His remaining claims are without merit and do not warrant further discussion.
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In his first claim, Mr. Parhm alleged that his trial counsel was ineffective
for failing to advise him regarding the elements of the charges and the corresponding
defenses. Specifically, Mr. Parhm alleged that his trial counsel failed to inform him that
a conviction for racketeering required that the predicate incidents in which he was
engaged must have "the same or similar intents, results, accomplices, victims, methods
of commission, or were interrelated by distinguishing characteristics, rather than being
isolated incidents." Mr. Parhm further alleged that trial counsel failed to inform him that
conspiracy to commit racketeering required proof of specific intent. Mr. Parhm also
alleged that his trial counsel was ineffective for failing to inform him of the corresponding
defenses to the charges against him, such as lack of intent. Mr. Parhm concluded by
alleging that if his trial counsel had properly advised him of the elements that the State
would be required to prove if the case had proceeded to trial and the defenses available
to the charges, he would not have entered a no contest plea and would have proceeded
to trial.
In denying Mr. Parhm's claim as conclusively refuted by the record, the
postconviction court relied on the statement of the factual basis for the plea recited by
the prosecutor during the plea colloquy. When the trial court asked Mr. Parhm if he had
any objection to the factual basis as stated by the prosecutor, he responded, "No."
Citing these portions of the record from the plea colloquy, the postconviction court
found: "[Mr. Parhm] was informed of the elements comprising each charged offense and
the specific incidents underlying the charges, and he did not raise any objection
regarding the incidents being isolated or that he knowingly participated in the
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conspiracy." Based on this finding, the trial court denied claim one as conclusively
refuted by the record.
There is nothing in the record attachments to refute Mr. Parhm's claim that
his trial counsel failed to properly advise him of the elements of the charged offenses
and his available defenses. Also, there is nothing in the record attachments to refute
Mr. Parhm's claim that if he had been properly advised, he would have declined to enter
his no contest pleas and would have insisted on going to trial. Although the prosecutor
recited the elements of the charges at the plea hearing, such a brief recitation was not
sufficient to conclusively refute Mr. Parhm's claim that his counsel failed to advise him
regarding the elements of the charges. Nor was it a proper substitute for the informed
advice of a competent lawyer regarding what the State would have been obligated to
prove in the cases against Mr. Parhm.1 Indeed, this is especially true in cases involving
racketeering and conspiracy to commit racketeering, whose hallmark is their complexity.
See generally Hagopian v. Justice Admin. Comm'n, 18 So. 3d 625, 640-42 (Fla. 2d DCA
2009) (discussing the complexity of RICO prosecutions and their defense); Jennifer
Daley, Tightening the Net of Florida's RICO Act, 21 Fla. St. U. L. Rev. 381, 384 (1993).
Furthermore, the prosecutor's statement of the factual basis for the plea
did not refute Mr. Parhm's claim that his trial counsel failed to advise him of the
availability of specific defenses to the racketeering and conspiracy to commit
1
We note that Mr. Parhm expressly stated during the plea colloquy that he
was pleading no contest to the charges not because he believed that he was guilty but
because he had concluded that the entry of the pleas was in his best interest. Under
these circumstances, his failure to object to the factual basis for the charges as stated
by the prosecutor is of little weight in determining his understanding and acceptance of
the prosecutor's recitation of the facts.
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racketeering charges, e.g., that the alleged predicate incidents were isolated incidents
and the State would not have been able to prove his intent to participate in the alleged
conspiracy. "In order for a trial court to summarily deny a defendant's claim that his
counsel failed to advise him of a specific defense, the record must conclusively refute
the claim." Jones v. State, 846 So. 2d 1224, 1226 (Fla. 2d DCA 2003) (citing Flores v.
State, 662 So. 2d 1350, 1351-52 (Fla. 2d DCA 1995)) (reversing the summary denial of
defendant's claim that counsel failed to inform him that consent was an available
defense to a sexual battery charge and remanding for an evidentiary hearing); see also
Fernandez v. State, 135 So. 3d 446, 447-48 (Fla. 2d DCA 2014) (reversing the
summary denial of defendant's claim that counsel failed to advise him of the availability
of the afterthought defense to a robbery charge and remanding for an evidentiary
hearing).
Accordingly, we reverse the denial of Mr. Parhm's claim one and remand
for the postconviction court either to attach specific portions of the record refuting Mr.
Parhm's allegations in claim one or to conduct an evidentiary hearing. In all other
respects, we affirm the postconviction court's order.
Affirmed in part, reversed in part, and remanded.
MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.
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